Thelma Barone v. City of Springfield , 902 F.3d 1091 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THELMA BARONE, an individual, No. 17-35355
Plaintiff-Appellant,
D.C. No.
v. 6:15-cv-01552-
AA
CITY OF SPRINGFIELD, Oregon, a
municipal corporation; TIM DONEY,
individually, and as Chief of Police OPINION
of the Springfield Police
Department; TOM RAPPE,
individually, and as a Lieutenant of
the Springfield Police Department;
GINO GRIMALDI, individually, and as
City Manager of the City of
Springfield; GRETA UTECHT,
individually, as Director of Human
Resources for the City of
Springfield,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted June 5, 2018
Portland, Oregon
Filed September 5, 2018
2 BARONE V. CITY OF SPRINGFIELD
Before: MILAN D. SMITH, JR. and MARY H.
MURGUIA, Circuit Judges, and ALVIN K.
HELLERSTEIN, * District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment and remanded in an
action brought pursuant to 42 U.S.C. § 1983 alleging that
plaintiff was retaliated against in her employment as a
Community Service Officer for the Springfield Police
Department, in violation of her First Amendment rights.
Plaintiff asserted that appellees retaliated against her
after she responded at a public event to a citizen inquiry
about racial profiling by the Police Department. The panel
held that plaintiff’s retaliation claim failed because she
spoke as a public employee, so her speech was not protected
by the First Amendment. The panel noted that plaintiff’s
speech at the event clearly fell within her job duties.
Plaintiff was aware that she was speaking as a representative
of the Department and discussing her work with the
Department. Moreover, the panel noted that the speech at
*
The Honorable Alvin K. Hellerstein, United States District Judge
for the Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARONE V. CITY OF SPRINGFIELD 3
issue was a response to an inquiry about racial profiling
complaints, a type of complaint plaintiff regularly received
in her capacity as a Community Service Officer.
The panel next held that an amended Last Chance
Agreement which plaintiff was required to sign before
returning to work was an unconstitutional prior restraint.
Paragraph 5(g) of the amended Agreement barred plaintiff
from saying or writing anything negative about the
Department, the City or its employees. The panel held that
Paragraph 5(g) restrained plaintiff’s speech as a private
citizen on matters of public concern, and appellees had not
presented justifications sufficient to warrant Paragraph
5(g)’s overbroad restrictions. The panel thus held that
Paragraph 5(g)’s prospective restriction violated the First
Amendment.
Addressing plaintiff’s claim of municipal liability under
Monell v. Department of Social Services, 436 U.S. 658(1978), the panel held that there was a genuine issue of
material fact about whether the City Manager delegated final
policymaking authority over employee discipline to the
Police Chief. If such authority was delegated, the City
would be liable under Monell. The panel therefore reversed
and remanded for consideration of whether the City could be
held liable for the Police Chief’s conduct in requiring
plaintiff to sign the amended Agreement.
4 BARONE V. CITY OF SPRINGFIELD
COUNSEL
Andrew Lewinter (argued), Eugene, Oregon, for Plaintiff-
Appellant.
Mark C. Sherman (argued) and Janet M. Schroer, Hart
Wagner LLP, Portland, Oregon, for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Thelma Barone brought this 42 U.S.C. § 1983 action
against the City of Springfield and several of its employees
(collectively, Appellees). Barone now appeals from the
district court’s order granting summary judgment in favor of
Appellees on all of her claims. We affirm the district court
respecting her First Amendment retaliation claim, reverse
the district court concerning her prior restraint claim, and
reverse and remand on the issue of Monell liability.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2003, Barone began working for the
Springfield Police Department (Department) as a
Community Service Officer II (CSO II). She focused on
victim advocacy, and served as a Department liaison to the
City’s minority communities. Throughout her tenure,
members of the Latino community complained to Barone
about racial profiling by the Department. She relayed these
complaints to Department leadership.
These complaints became more frequent beginning in
spring 2013. Around that same time, the Department was in
the midst of a leadership transition, which led to, among
BARONE V. CITY OF SPRINGFIELD 5
other things, Tim Doney’s appointment as Chief of Police.
As directed, Barone drafted her job description and sent it to
Chief Doney.
In 2014, the Department began investigating Barone in
connection with two Department-related incidents. The first
incident involved a school tour Barone led through the
Department. During the tour, some students took photos of
restricted areas, where no photo taking was permitted.
Department employees disputed whether Barone had asked
for, and received, approval for the students to photograph
each unit. In the second incident, a Latina notified Barone
of a potential crime. Barone was unable to reach a sergeant
about this crime, but she left a message with the dispatchers
and asked the sergeant to return her call. The sergeant never
returned her call because he said he did not know the phone
call pertained to a possible crime. The parties disputed
whether Barone informed the dispatchers that she wanted to
speak to the sergeant about an alleged crime.
On February 5, 2015, Barone spoke at a City Club of
Springfield event headlined “Come Meet Thelma Barone
from the Springfield Police Department.” The Department
paid her to attend the event; she wore her uniform; and her
supervisor attended. She understood that she attended and
participated in the event as a representative of the
Department. A member of the audience at the event asked
her whether she was aware of increasing community racial
profiling complaints. She said that she “had heard such
complaints.”
A week later, Chief Doney placed Barone on
administrative leave due to her alleged untruthfulness in
connection with investigations into the two pre-2015
occurrences. Almost a month later, the Department found
that Barone had violated several sections of the
6 BARONE V. CITY OF SPRINGFIELD
Department’s code of conduct, and she remained on
administrative leave.
The Department’s investigation of the two incidents
continued into the summer. In July 2015, the Department
suspended Barone for four weeks without pay, and informed
her that she would be required to sign a Last Chance
Agreement (the Agreement) when she returned to work.
Barone, her union representative, and Chief Doney met to
discuss the Agreement on the day that Barone returned to
work. At the meeting, Chief Doney provided Barone with a
copy of the Agreement, told her to review it, and told her that
the Department would terminate her if she did not sign it. A
week later, Barone refused to sign the original Agreement
because it prohibited her from reporting on racial profiling
and discrimination.
At a subsequent meeting, Chief Doney provided Barone
with an amended Agreement that addressed her stated
concerns with the original Agreement. Paragraph 5(g) of the
amended Agreement barred Barone from saying or writing
anything negative about the Department, the City, or their
employees. However, she could report complaints involving
discrimination or profiling by the Department. The amended
Agreement also provided that Barone would remain subject
to a generally applicable order that barred her from publicly
criticizing or ridiculing the Department and barred her from
releasing confidential information.
At the second meeting, Barone did not express concern
about any particular provision of the amended Agreement.
Nevertheless, after speaking with her representative, Barone
refused to sign the Agreement as amended. Because Barone
refused to sign the amended Agreement, Chief Doney
terminated her employment with the Department.
BARONE V. CITY OF SPRINGFIELD 7
Citing 42 U.S.C. § 1983, Barone sued the City, Chief
Doney, Department Lieutenant Tom Rappe, City Manager
Gino Grimaldi, and Human Resources Director Greta Utecht
for First Amendment retaliation, and imposing an unlawful
prior restraint. In May 2016, the district court denied
Barone’s motion for partial summary judgment on her prior
restraint claim. In April 2017, the district court granted
summary judgment in favor of Appellees on Barone’s
claims. Barone timely appealed. 1
STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291. We review de novo a district court’s grant
of summary judgment. Beaver v. Tarsadia Hotels, 816 F.3d
1170, 1177 (9th Cir. 2016). We may affirm on any ground
supported by the record. Facebook, Inc. v. Power Ventures,
Inc., 844 F.3d 1058, 1064 (9th Cir. 2016).
ANALYSIS
I. First Amendment Retaliation
We turn first to Barone’s First Amendment retaliation
claim, in which she asserts that Appellees retaliated against
her after she spoke at the February 2015 City Club event.
We affirm the district court, and conclude that Barone’s First
Amendment retaliation claim fails because she spoke as a
public employee, so her speech was not protected by the
First Amendment.
1
The district court concluded that the individual defendants were
protected by qualified immunity. Barone did not appeal that portion of
the district court’s judgment.
8 BARONE V. CITY OF SPRINGFIELD
First Amendment retaliation claims are analyzed under
the five-factor inquiry described in Eng v. Cooley, 552 F.3d
1062 (9th Cir. 2009). Barone must show that (1) she spoke
on a matter of public concern; (2) she spoke as a private
citizen rather than a public employee; and (3) the relevant
speech was a substantial or motivating factor in the adverse
employment action. Coomes v. Edmonds Sch. Dist. No. 15,
816 F.3d 1255, 1259 (9th Cir. 2016) (citing Eng, 552 F.3d at1070–71). If Barone establishes such a prima facie case, the
burden shifts to the government to demonstrate that (4) it had
an adequate justification for treating Barone differently than
other members of the general public; or (5) it would have
taken the adverse employment action even absent the
protected speech. Id. (citing Eng, 552 F.3d at 1070–72).
“[F]ailure to meet any [factor] is fatal to the plaintiff’s case.”
Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013)
(en banc).
The answer to the first Eng prong is clear. Barone’s
speech—responding to a citizen inquiry about racial
profiling by the Department—is a matter of public concern.
See Connick v. Myers, 461 U.S. 138, 148 (1983) (noting
speech warrants protection when it “seek[s] to bring to light
actual or potential wrongdoing or breach of public trust”).
The second prong of Eng is key to the outcome of the First
Amendment retaliation claim in this case. Specifically, did
Barone speak as a private citizen or as a public employee at
the City Club event?
In the Supreme Court’s foundational case in this area of
the law, the Court held that a school district violated a
teacher’s right to free speech when it fired him for writing a
letter to a local newspaper that criticized a school board
decision concerning a local tax issue. Pickering v. Bd. of
Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564–65
BARONE V. CITY OF SPRINGFIELD 9
(1968). In concluding that the teacher spoke as a private
citizen, the Court noted that the teacher’s statements were
not “directed towards any person with whom [the teacher]
would normally be in contact in the course of his daily work”
and the publication of the letter did not “interfere[] with the
regular operation of the schools generally.” Id. at 569–70,
572–73.
The Court provided further guidance on public employee
speech in Garcetti v. Ceballos, holding that “when public
employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” 547 U.S.
410, 421 (2006) (emphasis added). The Court held that an
internal memorandum prepared by a prosecutor in the course
of his ordinary job responsibilities was unprotected
employee speech because he was “fulfilling a responsibility
to advise his supervisor about how best to proceed with a
pending case.” Id. In other words, his “expressions were
made pursuant to his duties as a calendar deputy” and
“[r]estricting speech that owes its existence to a public
employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private
citizen.” Id. at 421–22.
Garcetti instructed that
The proper inquiry is a practical one. Formal
job descriptions often bear little resemblance
to the duties an employee actually is expected
to perform, and the listing of a given task in
an employee’s written job description is
neither necessary nor sufficient to
demonstrate that conducting the task is
within the scope of the employee’s
10 BARONE V. CITY OF SPRINGFIELD
professional duties for First Amendment
purposes.
Id. at 424–25. Thus, we engage in a “practical” inquiry into
an employee’s “daily professional activities” to discern
whether the speech at issue occurred in the normal course of
those ordinary duties. Id. at 422, 424. In doing so, we do
not focus on “[f]ormal job descriptions,” id. at 424, because
“[t]he critical question . . . is whether the speech at issue is
itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties,” Lane v. Franks,
134 S. Ct. 2369, 2379 (2014).
Whether an individual speaks as a public employee is a
mixed question of fact and law. Kennedy v. Bremerton Sch.
Dist., 869 F.3d 813, 823 (9th Cir. 2017), petition for cert.
filed (U.S. June 25, 2018) (No. 18-12). “First, a factual
determination must be made as to the ‘scope and content of
a plaintiff’s job responsibilities.’” Johnson v. Poway Unified
Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011) (quoting Eng,
552 F.3d at 1071). “Second, the ‘ultimate constitutional
significance’ of those facts must be determined as a matter
of law.” Id. (quoting Eng, 552 F.3d at 1071). Applying these
principles, Barone clearly spoke as a public employee at the
City Club event.
Barone argues that she was speaking as a private citizen
because the City Club event did not fall within her CSO II
job description. The Department’s general job description
for CSO II officers lists eight “essential duties,” which
primarily concern supporting the Latino and Hispanic
community regarding domestic violence issues. 2 However,
2
The eight “essential duties” are: (1) to serve as Department
Outreach and Education Advocate for the Hispanic community to, in
BARONE V. CITY OF SPRINGFIELD 11
“[f]ormal job descriptions often bear little resemblance to the
duties an employee actually is expected to perform”;
therefore, “an employee’s written job description is neither
necessary nor sufficient” to determine the scope of the
employee’s job. Garcetti, 547 U.S. at 424–25. In Dahlia,
we overruled one of our prior cases for “improperly rel[ying]
on a generic job description and fail[ing] to conduct the
‘practical,’ fact-specific inquiry required by Garcetti.”
735 F.3d at 1071 (overruling Huppert v. City of Pittsburg,
574 F.3d 696 (9th Cir. 2009)).
Applying Garcetti’s practical, fact-specific inquiry,
Barone’s job entailed more than communicating with the
Hispanic community about domestic violence issues.
Throughout her employment, Barone “occasionally received
complaints from citizens who believed that the Police
Department had racially profiled them.” Beginning in spring
2013, Barone noted there was a “marked increase in the
number of complaints of racial profiling,” and she “regularly
received” complaints of racial profiling “from the members
of the Latino community.” Part of her job included
“work[ing] with the various minority communities” in
responding “to complaints they may have about police
matters.”
Her job also included attending various community
outreach events to “obtain information relevant to [the]
part, “locate victims of domestic violence”; (2) to “[p]rovide[] follow-up
services to victims of domestic violence”; (3) to implement an advocacy
program that makes law enforcement services and community safety
programs more accessible; (4) to provide leadership for “problem
solving efforts unique to the City’s Hispanic community”; (5) to serve
as a primary source of information for the media; (6) to participate in
training volunteers; (7) to operate Department vehicles and equipment;
and (8) to prepare and submit monthly work reports.
12 BARONE V. CITY OF SPRINGFIELD
community . . . that are important” to the Department’s law
enforcement activities. One of her self-defined regular
duties was “develop[ing] and provid[ing] presentations and
trainings . . . to the general public describing our services
and how we have implemented cultural considerations when
assisting victims of crime.”
With this background in mind, Barone’s speech at the
City Club event clearly fell within her job duties. She was
speaking at a “community event” with “the general public”
where she was describing the Department’s services and
discussing issues relevant to the Hispanic community.
Barone characterized this meeting to her superiors as part of
the Department’s “outreach to multicultural communities.”
She was also aware that she was speaking as a representative
of the Department and discussing her work with the
Department. Moreover, the speech at issue was a response
to an inquiry about racial profiling complaints, a type of
complaint she regularly received in her capacity as a CSO II.
It is true that this communication was “outside of [her]
chain of command,” which can be relevant “particularly in a
highly hierarchical employment setting such as law
enforcement.” Dahlia, 735 F.3d at 1074. However, this lone
factor is not enough to transform employee speech into
private citizen speech. Barone’s job as a CSO II is apart
from the typical hierarchical employment ladder in a police
department. Her job required her to interact and
communicate with the public. Therefore, this case is distinct
from other cases involving more typical law enforcement
employees, such as a prison official who writes letters to a
state senator about sexual misconduct at the prison, see
Freitag v. Ayers, 468 F.3d 528, 545–46 (9th Cir. 2006), or a
police officer who issues press releases while serving as the
BARONE V. CITY OF SPRINGFIELD 13
president of the police officer union, see Ellins v. City of
Sierra Madre, 710 F.3d 1049, 1059–60 (9th Cir. 2013).
Similarly, it is not dispositive that another individual was
the Department’s official spokesperson. The Department
spokesperson’s duties focus on interactions with the media,
such as fostering dialogue with the media, preparing press
releases, and serving as a contact person for media inquiries.
In contrast, Barone was interacting with the public, not the
media, at the City Club event. An employee does not speak
as a citizen merely because the employee directs speech
towards the public, or speaks in the presence of the public,
particularly when an employee’s job duties include
interacting with the public. See Brandon v. Maricopa
County, 849 F.3d 837, 845 (9th Cir. 2017) (holding a county
attorney’s comments to a newspaper about a civil action
against the sheriff’s department constituted public employee
speech in part because “her public statements touched on the
very matter on which she represented the county”); cf.
Kennedy, 869 F.3d at 827 (“When acting in an official
capacity in the presence of students and spectators, [the
football coach] was also responsible for communicating [his
employer’s] perspective on appropriate behavior through the
example set by his own conduct.”).
Other facts support our conclusion that Barone spoke as
a public employee. While members of the public spoke and
asked her questions at the event, she had special access to
the event because of her position, highlighted by the event’s
title: “Come Meet Thelma Barone from the Springfield
Police Department.” Not only did Barone’s speech fall
within the “tasks [she] was paid to perform,” Ellins, 710 F.3d
at 1058 (quoting Eng, 552 F.3d at 1071), but she spoke while
clothed in official attire, while on the clock, and in a location
she had access to by virtue of her position. See Kennedy,
14 BARONE V. CITY OF SPRINGFIELD
869 F.3d at 827 (holding that a high school coach was a
public employee when he engaged in expressive conduct at
a school event, wearing school attire, while on duty, and
while in a location that he had access to by virtue of his
position).
Barone alternatively argues that her job required her to
work with communities of color to handle complaints, but
the speech here was answering a citizen’s question. This
argument also fails. Barone’s job involved handling
complaints and, at a general level, working with the Hispanic
community to build trust between the Springfield Hispanic
community and law enforcement. Barone’s speech was in
response to a question about racial profiling complaints. Her
answer, at an event that falls within her job duties, is
“inextricably intertwined” with her duties as a CSO II. See
Hagen v. City of Eugene, 736 F.3d 1251, 1259 (9th Cir.
2013) (concluding plaintiff spoke as a public employee
where he raised “concerns about SWAT safety,” which was
“inextricably intertwined with his duties as a K-9 officer”
despite no “formal written duty to do so”). Moreover, even
if answering the question had fallen hypothetically outside
of Barone’s job duties, she did not cease speaking as a public
employee when the conversation moved briefly beyond the
narrow range of topics included within her job duties when
she attended an event in her official capacity. See Johnson,
658 F.3d at 967–68 (holding a teacher does not cease acting
as a teacher when “the conversation moves beyond the
narrow topic of curricular instruction”); see also Kennedy,
869 F.3d at 828 (adopting Johnson’s reasoning for coaches).
Adopting Barone’s argument here would require employers
to parse individual lines of speech, and would result in an
impractical standard for public employers going forward.
BARONE V. CITY OF SPRINGFIELD 15
That Barone did not “speak[] in direct contravention to
[her] supervisor’s orders” further supports our conclusion
that she spoke as a public employee. Dahlia, 735 F.3d at
1075. Barone was the listed speaker in the City Club event’s
advertisement, her supervisors were aware of the event, and
one of her supervisors attended the event. There is no
evidence that her supervisors instructed her not to speak at
this event or instructed that she limit her speech to a certain
topic, such as domestic violence.
In sum, Barone was fulfilling her professional duty as a
CSO II for the Department when she spoke at the City Club
event. Because she spoke as a public employee, and not as
a private citizen, her speech was unprotected, and her First
Amendment retaliation claim fails.
II. Prior Restraint
We next address Barone’s claim that the amended
Agreement was an unconstitutional prior restraint. Chief
Doney required Barone to sign the amended Agreement in
order to keep her job, and he fired Barone when she refused
to sign it. Because the amended Agreement fails to pass
muster under the Pickering test, we reverse the district
court’s grant of summary judgment in favor of Appellees on
Barone’s prior restraint claim.
“[C]itizens do not surrender their First Amendment
rights by accepting public employment.” Lane, 134 S. Ct. at
2374. Indeed, the public has an interest “in receiving the
well-informed views of government employees engaging in
civic discussion,” Garcetti, 547 U.S. at 419, because
government employees are “in the best position to know
what ails the agencies for which they work,” Lane, 134 S.
Ct. at 2377 (quoting Waters v. Churchill, 511 U.S. 661, 674
(1994) (plurality opinion)). Nevertheless, the government
16 BARONE V. CITY OF SPRINGFIELD
“has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in
general.” See Pickering, 391 U.S. at 568. Government
employers, similar to private employers, “need a significant
degree of control over their employees’ words and actions.”
Lane, 134 S. Ct. at 2377 (quoting Garcetti, 547 U.S. at 418).
Thus, the government, in some instances, “may impose
restraints on the job-related speech of public employees that
would be plainly unconstitutional if applied to the public at
large.” United States v. Nat’l Treasury Emps. Union
(NTEU), 513 U.S. 454, 465 (1995).
The Court in Pickering prescribed a two-step approach
for evaluating these competing interests. We first ask
whether the restriction affects a government employee’s
speech “as a citizen on a matter of public concern.” See
Garcetti, 547 U.S. at 418. If it does, we inquire “whether
the relevant government entity had an adequate justification
for treating the employee differently from any other member
of the general public.” Id. While the Pickering test is most
often applied in the retaliation context, we also use it to
evaluate prospective restrictions on government employee
speech. See NTEU, 513 U.S. at 465–68; Gibson v. Office of
Attorney Gen., 561 F.3d 920, 926–27 (9th Cir. 2009).
Paragraph 5(g) of the amended Agreement states:
“Consistent with SPD General Order 26.1.1.XIX, Employee
will not speak or write anything of a disparaging or negative
manner related to the Department/Organization/City of
Springfield or its Employees. Employee is not prohibited
from bringing forward complaints she reasonably believes
involves discrimination or profiling by the Department.” In
BARONE V. CITY OF SPRINGFIELD 17
turn, General Order 26.1.1.XIX, 3 which applies to all
Department employees, provides, in part: “Members shall
not publicly criticize or ridicule the Department, its policies,
or other members. . . . Members shall conscientiously avoid
the release of any confidential information or information
which compromises any investigation.”
A. The Amended Agreement Restricts Private
Citizen Speech on Matters of Public Concern.
The first step of the Pickering test involves two separate
inquiries—first, whether the restriction reaches speech on a
matter of public concern, and second, whether the restriction
reaches speech only within the scope of a public employee’s
official duties. See Garcetti, 547 U.S. at 418. “In assessing
a prior restraint, we focus on the text of the policy to
determine the extent to which it implicates public
employees’ speech as citizens speaking on matters of public
concern.” Moonin v. Tice, 868 F.3d 853, 861 (9th Cir. 2017).
It is clear that Paragraph 5(g) extends to matters of public
concern. “Speech involves matters of public concern ‘when
it can “be fairly considered as relating to any matter of
political, social, or other concern to the community . . . .”’”
Lane, 134 S. Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S.
443, 453 (2011)). This is a broad standard, and Paragraph
5(g)’s bar is not limited to speech on internal issues such as
logistics or individual personnel disputes. See Gibson,
561 F.3d at 925. Instead, Paragraph 5(g) forbids any
negative speech about City or Department misconduct
except for reporting police “discrimination or profiling.”
City or Department misconduct, or any other City-related
3
General Order 26.1.1.XIX is not the subject of this appeal, so we
need not decide whether it also imposes an unlawful prior restraint.
18 BARONE V. CITY OF SPRINGFIELD
issues, are topics that would be of interest to the community.
See, e.g., Connick, 461 U.S. at 148 (noting that a
prosecutor’s failure to adequately investigate and prosecute
criminal cases and a prosecutor’s breach of public trust are
matters of public concern).
Second, Paragraph 5(g) of the amended Agreement
affects citizen speech. While some speech restricted by the
amended Agreement falls within Barone’s official duties,
“much of the potentially affected speech does not.” Moonin,
868 F.3d at 862.
Moonin guides our decision on this claim. In Moonin, a
highway patrol supervisor announced a new policy
prohibiting certain highway patrol officers from directly
contacting “ANY non-departmental and non-law
enforcement entity or persons” about the department’s K-9
program and drug interdiction program. Id. at 858–59. We
reasoned that while the policy regulated some speech that
fell within the officers’ official duties, such as reporting
departmental misconduct, much of the affected speech did
not fall within their official duties. Id. at 862. We refused
to assume that the officers spoke as employees “on every
occasion in which they discuss information learned or
opinions developed while on the job.” Id. at 862. For
example, the broad policy forbade speech about the best K-
9 training protocols, and officers were prohibited from
conveying their personal opinions about any aspect of the K-
9 or interdiction programs to legislators and community
groups, neither of which fell within the officers’ official
duties. Id. at 863. Therefore, the policy reached speech
made by the officers in their capacities as citizens on matters
of public concern, and the policy was subject to the
Pickering balancing test. Id. at 862, 864.
BARONE V. CITY OF SPRINGFIELD 19
Paragraph 5(g) restricts even more speech than the policy
at issue in Moonin. First, Paragraph 5(g)’s restriction is not
limited to a particular subject matter, unlike the restriction in
Moonin: Paragraph 5(g) flatly bars Barone from speaking
negatively about the Department, the City, or their
employees. Second, while a bar on only disparaging or
negative speech is narrower than a prohibition on all speech,
the prohibition on negative speech “suggests that, to the
extent [Paragraph 5(g)] is targeted at all, it is targeted at
speech not made pursuant to [Barone’s] official duties.” Id.
at 863.
As was the case in Moonin, there is a lack of
“qualification regarding what types of information or
opinions” are subject to Paragraph 5(g). See id. at 862–63.
Therefore, Paragraph 5(g) does not forbid speech only in
Barone’s capacity as an employee. The only limiting
language in Paragraph 5(g) is that Barone may report
complaints of discrimination or profiling by the Department.
This one clarification does not remedy an otherwise broad
and open-ended prohibition on “anything” related to the
Department or the City. Indeed, this language would sweep
in any disagreement about the City’s services, employees, or
elected officials, including speech on topics or individuals
that do not overlap with Barone. For example, Paragraph
5(g)’s plain language would bar Barone from criticizing the
City’s cleanliness, water quality, or tax and revenue policies.
Commenting on these topics is well beyond Barone’s duties
as a CSO II. 4
4
Appellees argue that Barone, a non-lawyer, never raised prior
restraint concerns during negotiations with Chief Doney. To the extent
that Appellees argue that Barone waived her prior restraint claim, their
argument fails. We are unaware of any binding authority requiring
20 BARONE V. CITY OF SPRINGFIELD
Appellees’ argument that Paragraph 5(g) was not
intended to reach private citizen speech fails. In the prior
restraint context, we focus on the chilling effect of the
employer’s policy on the employee’s speech, rather than the
employer’s subjective intent. See NTEU, 513 U.S. at 468.
We evaluate the chilling effect of the amended Agreement
by examining the language of the amended Agreement itself.
Moonin, 868 F.3d at 861 n.5 (citing Milwaukee Police Ass’n
v. Jones, 192 F.3d 742, 748 (7th Cir. 1999)). Therefore, we
are concerned with “what an employee reading the policy
would think the policy requires,” not the subjective intent of
Appellees. Id. An employee reading this Agreement would
think the amended Agreement bars exactly what it says it
bars—“anything of a disparaging or negative manner” about
the Department, the City, or their employees. 5
Citing a Seventh Circuit opinion, Appellees contend that
the amended Agreement does not restrain private citizen
speech because it does not contain any provisions
referencing citizen speech. See Milwaukee Deputy Sheriff’s
Ass’n v. Clarke, 574 F.3d 370, 383 (7th Cir. 2009). This
argument has no traction. First, we are not bound by Clarke.
Second, in Moonin, we concluded that the challenged policy
Barone to raise her specific concerns during her meetings with Chief
Doney. Her challenge to the amended Agreement was raised in the
initial complaint, was litigated below, and is properly before us now.
5
Appellees suggest that Paragraph 5(g)’s reference to General Order
26.1.1XIX shows that it was never intended to reach citizen speech.
Paragraph 5(g)’s introductory clause—“[c]onsistent with SPD General
Order 26.1.1.XIX”—does not limit the effect of the remainder of
Paragraph 5(g). See District of Columbia v. Heller, 554 U.S. 570, 578
(2008) (“[A] prefatory clause does not limit or expand the scope of the
operative clause.”).
BARONE V. CITY OF SPRINGFIELD 21
affected the speech made by the officers in their capacities
as citizens, even though the policy contained no specific
reference to citizen speech. 868 F.3d at 859, 862. The same
reasoning applies here: The amended Agreement need not
reference citizen speech in order to be understood to forbid
citizen speech. 6
B. The Amended Agreement Fails the Pickering
Balancing Test.
Paragraph 5(g)’s broad language forbids speech made by
Barone in her capacity as a citizen on a matter of public
concern. Under Pickering, we next consider whether
Appellees “had an adequate justification” for implementing
the amended Agreement. See Garcetti, 547 U.S. at 418. To
determine whether a justification is adequate, we weigh “the
interests of the [public employee], as a citizen, in
commenting upon matters of public concern” against “the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.” Lane, 134 S. Ct. at 2377 (alteration in original)
(quoting Pickering, 391 U.S. at 568). In balancing these
interests, we also consider whether there is a “close and
rational relationship between the policy and legitimate
government interests.” Gibson, 561 F.3d at 928. We also
consider “the public’s interest in receiving the well-informed
6
Even if a restriction’s lack of a “reference to speech as a citizen”
were a factor in our analysis, Clarke, 574 F.3d at 383, the amended
Agreement would still be subject to scrutiny because this case is
distinguishable from Clarke. In Clarke, the Seventh Circuit upheld a
restriction that prohibited speech “related to” police officers’ “official
agency business.” Id. Here, the amended Agreement’s language is
sweeping and, on its face, is not limited to official agency business.
Therefore, the amended Agreement contains no cabining language akin
to that found in Clarke.
22 BARONE V. CITY OF SPRINGFIELD
views of government employees engaging in civic
discussion.” Garcetti, 547 U.S. at 419.
The burden of justifying Paragraph 5(g) rests with the
government. NTEU, 513 U.S. at 466. Because this “ban
chills potential speech before it happens,” as opposed to “an
adverse action taken in response to actual speech,” the
government’s burden is greater. Id. at 468. Appellees fail
to meet their burden here.
Appellees assert several justifications. Most are
restatements of general principles about the interest of
government employers in regulating the speech of their
employees. However, these general principles, detached
from any evidence in the record, do not justify the
restrictions in Paragraph 5(g). See id. at 475 (“[W]hen the
Government defends a regulation on speech as a means to
. . . prevent anticipated harms, it must do more than simply
‘posit the existence of the disease sought to be cured.’”
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664
(1994))); see also Gibson, 561 F.3d at 928 (requiring “a
close and rational relationship between the policy and
legitimate governmental interests”).
Appellees also justify the restraints in Paragraph 5(g) by
claiming that they help maintain the effective and efficient
operation of the Department, and protect against potentially
disruptive speech by Barone. These justifications also are
inadequate, separately or jointly.
First, Appellees argue that the City has an “interest . . .
in maintaining the effective and efficient operation of the
police department,” Dible v. City of Chandler, 515 F.3d 918,
928 (9th Cir. 2008), which requires that police officers
safeguard the public’s opinion of them. In Dible, we held
that a city’s interest in effective and efficient operation of the
BARONE V. CITY OF SPRINGFIELD 23
police department outweighed an officer’s interest in
maintaining a sexually explicit website featuring videos and
photos of the officer and his wife. See id. at 927–29. This
is because society “expects officers to behave with a high
level of propriety” and “[t]he law and [officers’] own safety
demands that they be given a degree of respect.” Id. at 928.
Once the officer’s website became public, the officer’s
“indecent public activities” undermined that respect, the
public began denigrating other officers, potential recruits
questioned other officers about the website, and the
department feared that the website would reduce its ability
to recruit female officers. Id. With this specific conduct in
mind, we held that the government adequately justified its
disciplinary action.
However, in Moonin, we rejected the government’s
justification that it sought to “ensur[e] effective operation of
the agency without disruption” by preventing officers from
speaking to non-law enforcement entities about certain
police programs. 868 F.3d at 865. While we recognized that
“police departments would operate more efficiently absent
inquiry into their practices by the public,” we reasoned that
“efficiency grounded in the avoidance of accountability is
not, in a democracy, a supervening value.” Id. at 866.
The prior restraint in this case more closely resembles
the restriction in Moonin than the post hoc disciplinary
action in Dible. As in Moonin, the Department may be more
efficient if the public holds a positive view of the
Department and the City, and preventing any negative or
disparaging speech about both the City and the Department
would help maintain that positive view. However,
maintaining efficiency through “avoidance of
accountability” and limiting “inquiry into [its] practices by
the public,” id., is not an acceptable justification in a
24 BARONE V. CITY OF SPRINGFIELD
democratic society. Indeed, avoiding accountability is a
greater concern here than in Moonin because Paragraph 5(g)
bars only disparaging or negative speech, and contains no
limiting language cabining the bar to certain subject matters.
Thus, this justification fails.
Second, citing Barone’s previous comments, Appellees
express concern about potential disruptive speech by her in
the future. In the past, Barone expressed her disagreement
with the Department, including statements to the City
Manager that other officers lied during her internal affairs
investigations. According to Appellees, these previous
accusations and Barone’s recent investigation may cause her
to discuss publicly her displeasure with the Department.
Appellees argue Moonin is distinguishable because there
was no similar evidence of past disruption in Moonin.
This justification also fails. The government has an
interest in preventing speech that it reasonably believes will
disrupt the workplace, see Connick, 461 U.S. at 154, and the
government may justify this policy through evidence of past
disruption or evidence that the anticipated harm is “real, not
merely conjectural,” Moonin, 868 F.3d at 867–68 (quoting
NTEU, 513 U.S. at 475). However, even assuming
Appellees provided sufficient evidence of past workplace
disruption by Barone, there is not a sufficiently “close and
rational relationship” between its interest and Paragraph
5(g)’s broad prohibition on speech. Gibson, 561 F.3d at 928.
Paragraph 5(g)’s restriction is not limited to employment-
related speech, let alone speech that reasonably could cause
a disruption at the Department. For instance, Appellees fail
to explain how Paragraph 5(g)’s restriction of speech about
unrelated matters “related to the . . . City of Springfield” will
“alleviate” the Department’s concern about workplace
disruption “in a direct and material way.” Moonin, 868 at
BARONE V. CITY OF SPRINGFIELD 25
867–68 (quoting NTEU, 513 U.S. at 475). This failure is
fatal to this justification. Concerns about potentially
disruptive speech may justify a narrower restriction on
speech, but Paragraph 5(g)’s sweeping restriction goes well
beyond a permissible restraint under Pickering.
Moreover, Appellees’ justifications are inadequate
collectively because Paragraph 5(g) is not tailored to speech
that implicates the Department’s justifications. See Moonin,
868 F.3d at 866–67 (concluding the government’s three
justifications, two of which were valid, did not justify the
police department’s “sweeping” and “expansive” policy).
Paragraph 5(g) makes no distinction between speech that
reasonably could be expected to disrupt the Department’s
operations and speech that will not cause a disruption. Nor
is it targeted to communication conveyed only in Barone’s
official capacity or communication that would otherwise
negatively impact the Department’s effectiveness and
efficiency. For example, neither justification explains
Paragraph 5(g)’s prohibition on speech concerning
“anything . . . related to the . . . City” or employees wholly
unrelated to the Department. In addition, Paragraph 5(g)’s
targeted focus on only “disparaging or negative” speech
renders the amended Agreement a posterchild of overt
viewpoint discrimination. See, e.g., City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 763–64 (1988).
The amended Agreement restrained Barone’s speech as
a private citizen on matters of public concern, and Appellees
have not presented justifications sufficient to warrant
Paragraph 5(g)’s overbroad restrictions. We thus hold that
Paragraph 5(g)’s prospective restriction violated the First
Amendment.
26 BARONE V. CITY OF SPRINGFIELD
III. Monell Liability
It is well established that a city or other local government
entity may be liable in a § 1983 action under Monell v.
Department of Social Services, 436 U.S. 658 (1978), when
the plaintiff proves that the municipality caused the
plaintiff’s injury. Connick v. Thompson, 563 U.S. 51, 60–61
(2011). A § 1983 plaintiff can establish municipal liability
in three ways: (1) the municipal employee committed the
constitutional violation pursuant to an official policy; (2) the
employee acted pursuant to a longstanding practice or
custom; and (3) the employee functioned as a final
policymaker. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.
2004).
Here, the issue is whether Chief Doney acted as a final
policymaker in the area of employee discipline for the
Department. 7 We look to state law to answer this question.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
“Authority to make municipal policy may be granted directly
by a legislative enactment” or “delegated by an official who
possesses such authority . . . .” Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986). We conclude that the
City Manager possessed final policymaking authority, and
that there is a triable issue of material fact whether the City
Manager delegated his final policymaking authority over
employee discipline in the Department to Chief Doney.
7
The parties discuss only the third category, and do not discuss
whether there is “a longstanding practice or custom” of the City Manager
delegating his authority over employee discipline to Chief Doney. See
Lytle, 382 F.3d at 982. Because this issue was not raised on appeal, we
decline to address this theory of Monell liability. On remand, however,
the district court may consider whether Monell liability can be
established through the existence of a longstanding practice or custom.
BARONE V. CITY OF SPRINGFIELD 27
A municipal policy may arise where a government
“chooses a course of action tailored to a particular situation”
that is “not intended to control decisions in later situations.”
Id. at 481. The course of action must be “made from among
various alternatives by the official . . . responsible for
establishing final policy” on the subject matter in question.
Id. at 483; see City of Okla. City v. Tuttle, 471 U.S. 808, 823
(1985) (“‘[P]olicy’ generally implies a course of action
consciously chosen from among various alternatives . . . .”).
Therefore, we look to whether the individual had final
policymaking authority “in a particular area, or on a
particular issue.” McMillian v. Monroe County, 520 U.S.
781, 785 (1997).
Oregon law provides that “[t]he powers of the city shall
be vested in the [city] council.” Or. Rev. Stat. § 221.120(6).
In turn, the City of Springfield Charter, governing the city
council, delegates to the City Manager the authority to
“prescribe rules governing the non-discriminatory
recruitment, selection, promotion, compensation, transfer,
demotion, suspension, layoff and dismissal of City
employees.” The City Charter does not delegate any
authority to the Chief of Police.
Barone argues that the City Manager was not the final
policymaker by reading the City Charter in an unduly narrow
fashion. She contends that the City Charter did not grant the
City Manager the sole authority over personnel decisions,
but rather the authority only to more broadly “prescribe
rules” about personnel decisions. This argument is
28 BARONE V. CITY OF SPRINGFIELD
unconvincing. First, she points to no authority that supports
this distinction. 8
Second, and more importantly, the City Charter
delegated the pertinent final policymaking authority to the
City Manager. 9 The final policymaker is the individual who
had authority in the particular area where the constitutional
violation occurred. See, e.g., Jett, 491 U.S. at 738(examining whether a supervisor “possessed final
policymaking authority in the area of employee transfers”
when a plaintiff alleged he was transferred because of his
race). In this case, the relevant area of policymaking is
employee discipline because the constitutional violation was
requiring Barone to sign the amended Agreement in order to
8
Barone contends that the city charter in Gillette v. Delmore,
979 F.2d 1342 (9th Cir. 1992), granted the city manager “sole authority
over personnel decisions,” and therefore we held that the city manager
was the final policymaker, unlike the case at bar. We do not have at our
disposal the language of the city charter in Gillette, however, and
therefore we cannot say whether the city charter in Gillette and the
Springfield City Charter are different.
9
Barone’s argument also undercuts her position that Chief Doney
possessed final policymaking authority. If the City Charter did not
delegate final policymaking authority over employee discipline to the
City Manager, that authority remained “vested in the [city] council,” Or.
Rev. Stat. § 221.120(6), not with Chief Doney. Absent another provision
in the City Charter delegating this authority to Chief Doney, we cannot
“assum[e] that municipal policymaking authority lies somewhere other
than where the applicable law purports to put it.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion). In order for
Chief Doney to possess final policymaking authority, the individual
originally granted this authority—here, the City Manager—must have
delegated it to Chief Doney. Therefore, Barone’s reading of the City
Charter would preclude her own argument that Chief Barone possessed
final policymaking authority because there is evidence that “whatever
decision [Chief Doney] made, the city manager would support.”
BARONE V. CITY OF SPRINGFIELD 29
keep her position at the Department. This decision was
within the purview of the City Manager under the City
Charter—requiring Barone to sign the amended Agreement
was a “rule[] governing” her “suspension, layoff and
dismissal.” The City Charter therefore delegated final
policymaking authority to the City Manager.
Because the City Charter delegated final policymaking
authority to the City Manager, we now consider whether he
delegated final policymaking authority over employee
discipline in the Department to Chief Doney. Appellees
liken this case to Gillette v. Delmore, wherein we concluded
that a fire chief’s decision to discipline a fire fighter did not
trigger Monell liability because the city charter “grant[ed]
authority to make City employment policy only to the City
Manager and the City Council.” 979 F.2d at 1350. The fire
chief possessed “the discretionary authority to hire and fire
employees,” but this authority was “not sufficient to
establish a basis for municipal liability.” Id. at 1350.
Appellees argue that, similar to the fire chief in Gillette,
Chief Doney possessed only discretionary authority.
We disagree. The plaintiff in Gillette failed to provide
evidence that the City Manager delegated final
policymaking authority to the fire chief. See id. (“Gillette
points to neither law nor evidence that suggests the district
court erred in relying on or interpreting the applicable
municipal law to determine who made final employment
policy for the City.”). In contrast, the record before us
contains evidence that the City Manager delegated his final
policymaking authority over employee discipline in the
Department to Chief Doney. For example, Chief Doney
conceded that “the buck stops” with him “[w]ithin the
department”; Director Utecht admitted that “whatever
decision [Chief Doney] made, the city manager would
30 BARONE V. CITY OF SPRINGFIELD
support in this case”; and the City Manager testified that he
had “no role” in the decision to fire or discipline Barone.
These statements create a triable issue of material fact about
who possessed final policymaking authority on employee
discipline for the Department.
Because there is a genuine issue of material fact about
whether the City Manager delegated final policymaking
authority to Chief Doney, the district court erred in granting
summary judgment in favor of the City. If the City Manager
delegated the relevant authority to Chief Doney, the City
would be liable under Monell for Chief Doney’s decision to
require Barone to sign the amended Agreement. We
therefore reverse and remand for consideration of whether
the City can be held liable for Chief Doney’s conduct for the
reasons herein noted. See Ulrich v. City & County of San
Francisco, 308 F.3d 968, 985–86 (9th Cir. 2002).
CONCLUSION
For the foregoing reasons, we affirm the district court’s
grant of summary judgment on the First Amendment
retaliation claim, reverse on the prior restraint claim, and
reverse and remand on the issue of Monell liability.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART,
REMANDED.